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OC Wins, Loses In Busker Suit Rulings

OCEAN CITY — A federal judge last week ruled in favor of a Boardwalk street performer on several key aspects of his civil suit filed against Ocean City in June, while siding with the town on an important public safety aspect of the case.

U.S. District Judge Ellen Hollander last Friday issued preliminary injunctions against certain aspects of an emergency ordinance passed by the Mayor and Council in June regarding street performers on the Boardwalk. The judge essentially reversed the provision in the ordinance prohibiting plaintiff Mark Chase and other street performers from selling their wares on the Boardwalk and, perhaps more importantly, reversed the city’s registration requirement for street performers and vendors.

However, Hollander did not reverse the section of the ordinance prohibiting street performers and vendors from setting up shop on the Boardwalk end of North Division Street, upholding public safety concerns about the widest access to the Boardwalk and the beach. It’s important to note the judge’s rulings were on requests for preliminary injunctions and permanent injunctions against the street performer ordinance will only come after what will likely be a protracted legal battle in court.

Nonetheless, street vendor Mark Chase was claiming victory this week for himself and his street performing brethren.

“Right now, it’s one of the euphoric moments for all of us,” he said. “I realize there’s a long way to go, but the judge basically said the town’s ordinance violates our First Amendment rights.”

In June, the Mayor and Council unanimously passed an emergency ordinance requiring all street performers to register each day at City Hall and pay a nominal fee for the registration. The ordinance also solidified language prohibiting street performers and artists from openly selling their wares on the Boardwalk and included specific language about the locations along the promenade where vendors were allowed to set up.

More specifically, the ordinance forbid street performers from practicing or exercising their art at the end of North Division Street, citing public safety concerns about the possible impact at one of the major access points to the Boardwalk and beach for police and emergency services.

“The court’s opinion is a victory for the First Amendment,” said Rutherford Institute President John Whitehead this week. “Street performers and artists have the same rights as any other citizens to the freedom of expression. Hopefully, this case will stop police intimidation and harassment of those who merely want the right to freely express themselves.”

In her memorandum to support or deny the requested preliminary injunctions, the judge upheld the town’s assertion North Division Street should be left off the list of appropriate locations for Boardwalk performers because of safety concerns. Mayor Rick Meehan and Fire Chief Chris Larmore testified North Division Street is the most important access point to the Boardwalk and beach for emergency services.

“In this case, there is no connection between Ocean City’s justification for its restrictions of locations on the Boardwalk where a person may peddle, hawk, solicit or perform and the content of the speech,” the opinion reads. “Rather, as the city’s witnesses credibly testified, the ordinance was enacted due to concerns for public safety and the management of the free flow of pedestrian traffic on the Boardwalk. The restriction on North Division Street applies only to a single street end because that particular street end is the only one large enough to accommodate the city’s emergency equipment in the event of a fire or medical incident on the beach or Boardwalk.”

In terms of the rights of street performers to sell their art on the Boardwalk, the judge clearly ruled on the side of the artists.

“Chase’s art and performance clearly constitute fully protected expression, and his sale of his own paintings is also fully entitled to the protection of the first amendment,” the opinion reads. “To satisfy intermediate scrutiny, the city must demonstrate that the ordinance is narrowly tailored to serve a significant government interest and leaves open an adequate alternative channel of communication. In my view, the city has failed to do so.”

Hollander opined by very definition the Boardwalk is an open commercial market and prohibiting street performers from hawking their art is in violation of the First Amendment.

“It is well known that Ocean City’s Boardwalk is host to a veritable bazaar of commercial activity from the shops and attractions that line it, yet the ordinance prohibits commerce only by persons situated on the Boardwalk itself, who do not sell their wares from ‘brick and mortar’ establishments,” the opinion reads.

Finally, the judge enjoined Ocean City from enforcing its registration requirement for street vendors.

“The registration scheme founders due to its overbreadth,” the opinion reads. “It broadly restricts speech and fails to strike a balance between the speech affected the governmental interests that Ocean City has asserted in support of the registration scheme,” the opinion reads. “Based on the record presently before me, Ocean City’s registration requirement for unlicensed solicitors does not satisfy First Amendment scrutiny. … I conclude that the burden of persuasion is on Ocean City. In effect, if the city cannot demonstrate that its ordinances satisfy the requisite level of scrutiny, plaintiff is likely to succeed on the merits.”